United States v. Jenkins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4466

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL A. JENKINS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-02-105)

Submitted: November 21, 2005 Decided: December 19, 2005

Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Thomas
R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Michael Anthony Jenkins pled guilty to conspiracy to

possess with intent to distribute at least fifty grams of cocaine

base, 21 U.S.C. §§ 841, 846 (2000), and possessing and brandishing

a firearm during and in relation to a drug trafficking crime, 18

U.S.C. § 924(c)(1) (2000). The district court sentenced Jenkins to

292 months of imprisonment. Jenkins’ counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious grounds for appeal, but asserting that

Jenkins was sentenced in violation of United States v. Booker, 125

S. Ct. 738 (2005). Jenkins has filed a pro se supplemental brief.

Finding no reversible error, we affirm.

Jenkins challenges his sentence as a career offender, see

U.S. Sentencing Guidelines Manual § 4B1.1 (2002), under Booker.

Specifically, he argues that his sentence was improperly enhanced

based on prior convictions. Because Jenkins did not object below,

this claim is reviewed for plain error. United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005). This court has held that, where

the facts are undisputed, the application of the career offender

enhancement falls within the exception for prior convictions.

United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);

accord United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005)

(“Career offender status is not ‘a sentencing judge’s determination

of a fact other than a prior conviction.’ . . . Booker explicitly

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excepts from Sixth Amendment analysis the third component of the

crime of violence determination, the fact of two prior

convictions.”); see also United States v. Harp, 406 F.3d 242, 247

(4th Cir.) (finding no plain error in the district court’s

designation of Harp as a career offender), cert. denied, 126 S. Ct.

297 (2005). Accordingly, we find that the district court did not

err in designating Jenkins as a career offender and that Jenkins’

sentence does not violate the Sixth Amendment in this regard. To

the extent Jenkins alleges that the district court committed error

under Booker by sentencing him under a mandatory application of the

guidelines, Jenkins has failed to demonstrate that the plain error

in sentencing him under a mandatory guideline scheme affected his

substantial rights. See United States v. White, 405 F.3d 208, 223

(4th Cir.), cert. denied, 74 U.S.L.W. 3302 (U.S. Nov. 14, 2005)(No.

05-6981).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We have also reviewed the pro se issues raised by Jenkins

and conclude they are without merit. We therefore affirm Jenkins’

conviction and sentence. This court requires that counsel inform

his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave

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to withdraw from representation. Counsel’s motion must state that

a copy thereof was served on the client. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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